JUDGMENT

Dr. Arijit Pasayat, J.—

1. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court setting aside the judgment of acquittal recorded by the then III Additional Sessions Judge, Deoria in Sessions Trial No.347 of 1978. The accused persons faced trial for alleged commission of offences punishable under Sections 147, 148, 307 read with Section 149, Section 436 read with Section 149 and Section 302 read with Section 149 of the Indian Penal Code, 1860 (in short the ‘IPC’). Nine persons faced trial. All of them were charged under Section 307 read with section 149, 436 read with section 149 and 302 read with section 149 I.P.C. Indra Jeet, Awadh Narain and Raj Banshi Tiwari were charged for rioting under section 147 I.P.C. whereas the rest under section 148 I.P.C. The incident occurred on 7.7.1978 at about 7.30 P.M. at three places within Police Station Kotwali, District Deoria. The F.I.R. was lodged the same night at 8.20 P.M. by Brij Raj Tiwari (PW-1). One Gunj Prasad Tiwari (hereinafter referred to as the (‘deceased’) was murdered in the incident whereas Subhash (PW 2), Devi Prasad Pandey (PW 5) and Virendra Kumar sustained injuries.

2. The case of the prosecution as unfolded during trial through F.I.R. and the evidence may be related thus. Brij Raj Tiwari (PW 1) resided in village Deoria Ram Nath, Police Station Kotwali, District Deoria. The accused were also the residents of the same place. Sarvajeet, Indrajeet and Jagdish accused were real brothers. Om Prakash was the nephew of Sarvjeet and other. Durga Prasad was the son of accused Awadh Narain. The accused Rajbanshi Tiwari and Raj Kishore were Patidars of accused Awadh Narain and the accused Awadh Narain and accused-appellant belonged to the group of the remaining accused. Enmity on account of litigation was going on between the family of the informant Brij Raj Tiwari PW 1 on the one hand and the accused Sarvjeet and Raj Kishore on the other. Earlier to the present incident, on the eve of Holi some one had inflicted a knife blow on the accused Sarvjeet in which Subhash Tiwari PW 2 (brother of the informant) was implicated as accused. Sometime thereafter, Hari Ram first cousin of accused Durga was also inflicted knife blow by someone in which the informant, his father Guru Prasad the deceased, Mahasarey, Subhash Tiwari (PW-2) and Jai Shankar were implicated as accused. Proceedings under sections 107/117 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) had also been drawn between the informant and others on one side and the accused Durga and Hari Ram on the other. In front of the door of the house of the informant there was a flour mill adjacent to which on the northern side the house of the accused Durga Prasad and Hari Ram was situated and on the eastern side thereof the house of the accused Sarvjeet was situated at a distance of about 10 paces from the flour mill. During the thrashing season, dust and sound came to be produced because of generation of the flour mill to the disliking of the accused. The accused Sarvjeet, Durga Prasad and Hari Ram had applied for electric disconnection of the informant before the Electricity Department prior to the present incident in which the accused Raj Kishore was cited as a witness. A case under Section 133 of Code was instituted against the informant by the police which came to be decided in favour of the informant. So, there was a long string of enmity between the two sides.

The present incident occurred in three parts. At about 7.30 P.M. on 7th July, 1978 Subhash- the younger brother of the informant was sitting at his grocer’s shop on the crossing in front of the house of Sri Vishwa Nath Pandey, Advocate. All the accused with 2 or 3 other companions reached there. Sarvjeet and Om Prakash had bombs in their hands; Jagdish had a gun; Ram Narain had country made pistol; Raj Kishore had a spear. Durga Prasad had a Pharsa and the remaining accused had lathis. As soon as they reached th